California Civil Jury Instructions (CACI)

530A. Medical Battery

[Name of plaintiff] claims that [name of defendant] committed a medical battery. To establish this claim, [name of plaintiff] must prove all of the following:

1. [That [name of defendant] performed a medical procedure without [name of plaintiff]’s consent; [or]]

[That [name of plaintiff] consented to one medical procedure, but [name of defendant] performed a substantially different medical procedure;]

2. That [name of plaintiff] was harmed; and

3. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

A patient can consent to a medical procedure by words or conduct.

Derived from former CACI No. 530 April 2007; Revised October 2008

Directions for Use

Select either or both of the two bracketed options in the first element depending on the nature of the case. In a case of a conditional consent in which it is alleged that the defendant proceeded without the condition having occurred, give CACI No. 530B, Medical Battery—Conditional Consent.

Sources and Authority

  • Battery may also be found if a substantially different procedure is performed: “Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239 [104 Cal.Rptr. 505, 502 P.2d 1].)
  • “The battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Cobbs, supra, 8 Cal.3d at p. 240.)
  • “Our high court has made it clear that battery and lack of informed consent are separate causes of action. A claim based on lack of informed consent—which sounds in negligence—arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. In contrast, a battery is an intentional tort that occurs when a doctor performs a procedure without obtaining any consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [71 Cal.Rptr.3d 469].)
  • “Confusion may arise in the area of ‘exceeding a patient’s consent.’ In cases where a doctor exceeds the consent and such excess surgery is found necessary due to conditions arising during an operation which endanger the patient’s health or life, the consent is presumed. The surgery necessitated is proper (though exceeding specific consent) on the theory of assumed consent, were the patient made aware of the additional need.” (Pedesky v. Bleiberg (1967) 251 Cal.App.2d 119, 123 [59 Cal.Rptr. 294].)
  • “Consent to medical care, including surgery, may be express or may be implied from the circumstances.” (Bradford v. Winter (1963) 215 Cal.App.2d 448, 454 [30 Cal.Rptr. 243].)
  • “It is elemental that consent may be manifested by acts or conduct and need not necessarily be shown by a writing or by express words.” (Kritzer v. Citron (1950) 101 Cal.App.2d 33, 38–39 [224 P.2d 808].)
  • “[T]he reason why CACI No. 530B has an explicit intent and knowledge requirement and CACI No. 530A does not is clear. The law presumes that ‘[w]hen the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present.’ That situation is covered by CACI No. 530A.” (Dennis v. Southard (2009) 174 Cal.App.4th 540, 544 [94 Cal.Rptr.3d 559], internal citation omitted.)
  • “In the absence of any definitive case law establishing whether operating on the wrong disk within inches of the correct disk is a ‘substantially different procedure,’ we conclude the matter is a factual question for a finder of fact to decide and at least in this instance, not one capable of being decided on demurrer.” (Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 647 [75 Cal.Rptr.3d 861.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 388–635

California Tort Guide (Cont.Ed.Bar 3d ed.) §§ 9.11–9.16

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.41, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)

6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.14 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, §§ 415.13, 415.20 (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq. (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons: Medical Malpractice, § 175.28 et seq. (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, § 104.11 (Matthew Bender)